In this appeal of a conviction of first-degree premeditated murder, we hold: (1) The
trial court properly overruled the defendant's motion to suppress, (2) evidence that the
defendant always carried a gun was admitted properly through the defendant's cross-examination
of a witness, and (3) there was sufficient evidence to prove premeditation.

Virginia A. Girard-Brady, of Lawrence, argued the cause and was on the brief
for appellant.

Jae M. Lee, assistant county attorney, argued the cause, and Carla J.
Stovall, attorney general, was with
her on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.: This is a direct appeal by Reynaldo Alvidrez from convictions of
premeditated first-degree murder, aggravated burglary of a dwelling, and criminal damage to
property. Alvidrez challenges the trial court's denial of his motion to suppress, admission of
evidence that he "always carried a gun," and the sufficiency of the evidence to establish that
the killing was premeditated.

The State's evidence centered on the eyewitness accounts of three individuals, Maria
Rodriguez and Manuel and Juana Solorzanos. Each testified they saw Alvidrez shoot and kill
Ralph Rodriguez. Maria identified Alvidrez, with whom she had had a relationship while
separated from her husband, as approaching her residence with something in his hand during
the early morning hours of February 22, 1999. He kicked in a wooden kitchen door, causing
Maria to run to a daughter's room and crawl out of a window. She went upstairs to the home
of her neighbors, the Solorzanos.

From there, with the three of them looking out a window, they saw Alvidrez go back
to his car. Ralph Rodriguez, Maria's husband, drove into a nearby parking area and Alvidrez
drove his car up to the side of Mr. Rodriguez' vehicle. Alvidrez waited while Mr. Rodriguez
exited from the passenger side of the car and then put a gun to Mr. Rodriguez' head and shot
him. Maria testified the lighting was good and she was absolutely certain that it was Alvidrez
who killed her husband. She further testified that Alvidrez had previously threatened to kill
her, her daughters, and her husband if she did not stay with him.

The testimony of the Solorzanos was identical to that of Maria. Both stated they saw
Alvidrez leave the residence, get into his car, and pull his vehicle up next to Mr. Rodriguez'
car, and that when Mr. Rodriguez exited the vehicle, Alvidrez shot him in the head.

The evidence supporting the eyewitness testimony was that Deputy Harper stopped
Alvidrez the morning of the shooting near Jetmore after noticing blood on the driver's side
door and a driver's side window broken out. K.B.I. tests revealed that the blood was not
Alvidrez' but could have been Mr. Rodriguez'. A handgun was found in the area where
Alvidrez had stopped. The fingerprint expert for the K.B.I. testified that the fingerprint found
on the magazine of the handgun was that of Alvidrez. A fire mark and tool mark inspector
for the K.B.I. testified that a bullet cartridge found at the scene was an exact match to the gun
found. Further, it was testified that broken glass found at the crime scene matched that found
in Alvidrez' car.

Alvidrez testified in his own behalf and contended that he had been accosted in Garden
City by two men at gunpoint and forced to drive to Dodge City, where he was told to take
them to Maria Rodriguez' house. He contended he drove in circles and when he stopped to
get gas was able to attempt a call to the police from a pay phone. He contended the purpose of
the call was to warn the police about what was going to happen. The two men said their desire
to go to the Rodriguez residence had to do with drug transactions. Once there, Alvidrez
claimed the two men forced him into the house and that after he saw Maria's daughters, the
three of them left. When Mr. Rodriguez pulled up, the two of them ordered Alvidrez to kill
Mr. Rodriguez. He refused, and one of the other men shot Mr. Rodriguez. He was ordered
to drive away, and the men eventually got into another vehicle but followed him toward
Jetmore.

The three eyewitnesses said there were no other individuals in the parking lot when
Alvidrez shot and killed Mr. Rodriguez.

Alvidrez' first issue on appeal is his contention that his motion to suppress statements
made during an interview with an investigating officer was erroneously denied.

Alvidrez was transported from Jetmore to Dodge City on the morning of his arrest
where he was interviewed by Officer George. He contends statements made to Officer George
while in custody and after he had invoked his right to remain silent were inadmissible due to
no valid and voluntary waiver of his Mirandav. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694, 86
S. Ct. 1602 (1966), rights. After a full evidentiary hearing, the trial court denied the motion
to suppress.

When reviewing a motion to suppress evidence, an appellate court reviews the factual
underpinnings of a district court's decision "'by a substantial competent evidence standard and
the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate
court does not reweigh the evidence. The ultimate determination of the suppression of
evidence is a legal question requiring independent appellate review.'" State v.
Toothman, 267
Kan. 412, 416, 985 P.2d 701 (1999) (quoting State v. DeMarco, 263 Kan. 727, Syl.
¶ 1, 952
P.2d 1276 [1998]).

The testimony at the suppression hearing showed that after being given and having
signed a Miranda rights form, Alvidrez stated he wished to remain silent. A
preliminary
breath test was requested and agreed to by Alvidrez, which showed no alcohol in his system.
When the officer returned, he repeated several preliminary questions relating to employment
records and physical characteristics, which were preparatory to holding Alvidrez in custody.
Alvidrez, in response to a question of whether he wanted to talk with the officer, stated: "I'd
rather talk to a lawyer." Alvidrez was asked if he knew why he had been arrested, and when
he said he did not, he was told he was a suspect in a shooting.

A videotape had been running and was apparently shut off to allow Alvidrez to remove
his clothes because when it resumed it showed him in a orange jumpsuit sitting in the corner.
Officer George was removing a piece of paper from the floor and asked Alvidrez if he had
glass in his hair. He then said to Alvidrez, "Before we started taking your clothes off, you
told me that we missed two guys. . . . What did you mean by that?"

From that point on, Alvidrez recounted a story substantially identical to that which he
gave at trial. Some questions were asked by the officer but only when the defendant made an
ambiguous statement or left out details.

The record clearly shows there was no attempt to intimidate, no threats were made, no
coercive statements were made, and the interviewer only attempted to determine names of
individuals mentioned by Alvidrez and where they might be located. The trial court found that
while Alvidrez appeared tired, he was allowed to leave the interview to go the restroom and
there was nothing coercive about the interview. After reviewing the testimony and the
interview as depicted in the videotape, the court found that the statements were not coerced or
given involuntarily and that the police officers did not proceed improperly after Alvidrez had
requested an opportunity to speak with an attorney.

The trial court correctly denied the motion to suppress, although alternative grounds
subsequently exist to support its decision. The State did not present Alvidrez' statement or call
Officer George to the stand in its case in chief. The precise story given to Officer George was
substantially what Alvidrez testified to at the trial, and while he did place himself at the scene,
he related a scenario which was exculpatory and blamed third parties for Mr. Rodriguez'
death.

In this case, the statements only became a part of the record after Alvidrez testified. A
copy of the interview tape was not made a part of the evidentiary record at the trial, and no
transcript of the interview was given to the jury.

Even if Alvidrez' Miranda rights were violated (which we do not hold them to
be), his
statements could have been used for impeachment purposes under the holding of Harris v.
New
York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), which was followed by our
Kansas
case of State v. Graham, 244 Kan. 194, 201, 768 P.2d 259 (1989).

The argument made in the motion to suppress was that the statements were taken after
Alvidrez had invoked his right to remain silent or to talk to an attorney, but for the first time
on appeal he contends the statements were involuntary. This is contrary to the record and, in
addition, was an issue not presented to the trial court; thus, we will not consider it on appeal.
See State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999).

The worst characterization that can be given of circumstances surrounding the interview
is that this was "creative conversation." However, when a statement is made that parties
responsible for a crime were being "missed," an area of concern was opened for which it was
not only proper but required that law enforcement pursue. This issue does not require a new
trial for two reasons. The trial court properly denied the motion to suppress, and the
statements were introduced into the trial by Alvidrez' own testimony.

Alvidrez next contends that evidence that he "always carried a gun" was improperly
admitted at his trial.

Alvidrez filed a motion in limine requesting that Maria Rodriguez be prohibited from
testifying at trial that he always carried a gun. He contends he properly reserved the issue by
asking for a continuing objection with respect to the admission; however, the record reflects
that the precise testimony was the result of Maria's cross-examination.

"When a motion to suppress is denied, the moving party must object to the evidence at
trial to preserve the issue on appeal." State v. Cellier, 263 Kan. 54, Syl. ¶ 2,
948 P.2d 616
(1997). We have also held that the appellant has the burden of furnishing a record which
affirmatively shows that prejudicial error occurred. See State v. Davis, 256 Kan. 1,
19, 883
P.2d 735 (1994).

Maria's testimony was properly admitted to show that Alvidrez had threatened her and
wanted her to get back with him. The statement concerning him always having a gun came
out on cross-examination where defense counsel posed this question: "But, you never saw a
gun and he never threatened you with a gun?" In response to this question, Maria said, "He
always has a gun, always." The defense counsel made no effort to strike the answer as
nonresponsive, and through a series of questions, he did show that while Alvidrez had
threatened Maria he had never done so with a gun.

After this cross-examination, the prosecution on redirect essentially repeated the
cross-examination testimony without any objection, and it was repeated again by Maria on
recross-examination.

It is not proper to attempt to make a continuing objection concerning an issue and have
it protect you when your own counsel allows the exact testimony to come before the court.
This testimony was interjected into the trial by the questions on cross- and recross-examination.
This issue is without merit.

Finally, defendant contends there was insufficient evidence to establish that he had
premeditated the killing.

When reviewing sufficiency of the evidence, we must be convinced, after a review of
all the evidence, viewed in the light most favorable to the prosecution, that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. State v.
Mason,
268 Kan. 37, 39, 986 P.2d 387 (1999).

In order to convict Alvidrez of first-degree murder, the State had to prove that he killed
Mr. Rodriguez intentionally and with premeditation. See K.S.A. 21-3401(a); State v.
Juiliano,
268 Kan. 89, 97, 991 P.2d 408 (1999).

Premeditation is the process of thinking about a proposed killing before engaging in the
homicidal conduct. State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997).
Premeditation
and deliberation may be inferred from the established circumstances of the case, provided the
inference is a reasonable one. In such a case, the jury has the right to make the inference.
State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978).

The only fact from the record that could be contended by Alvidrez to support his
argument is that Mr. Rodriguez was shot as soon as he stepped out of his car. The State cites
and the record reflects numerous facts relating to premeditation. The State contends that
Alvidrez threatened to kill Maria, Ralph, and their children prior to the shooting; went armed
with a weapon to Maria's home; stalked and attempted to harm her prior to her escape; waited
until Mr. Rodriguez exited his car, which would have taken longer than usual since he had to
leave from the passenger side because the driver's side door was not working, so he could
shoot Mr. Rodriguez at close range; aimed and shot Mr. Rodriguez in the head; did not call or
render aid; fled the scene; concealed the weapon; and lied in an attempt to cover up the
killing. Alvidrez' fingerprints were on the magazine of the gun, giving strong evidence that he
had utilized and loaded the gun.

We have on numerous occasions considered the issue of premeditation, and what we
have recently said in State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999), is
representative of
the many statements we have made on the subject. When Saleem contended there was not
sufficient evidence to support a finding of premeditation, we opined that "premeditation means
to have thought over the matter beforehand." 267 Kan. at 104. We considered in
Saleem
numerous factors, including the use of deadly force that was not justified and the firing of the
shots at close range into an area of the victim likely to be fatal. Those factors were also
present in this case. We have also held that leaving the scene in the manner Alvidrez did
could infer premeditation. See Saleem, 267 Kan. at 106.

There is adequate evidence in this case to show premeditation to support a conviction of
first-degree murder.